Harjinder Singh Guliani vs Charanjit Kaur & Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 09.10.2026
# CNR No. DLHC010330932008
+ FAO 97/2008
HARJINDER SINGH GULIANI .....Appellant
Through: Ms. Ritu Rana, Advocate
versus
CHARANJIT KAUR & ORS .....Respondents
Through: Mr. Rakesh Kumar Singh,
Advocate with respondent No.3 in
person
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT (ORAL)
CM No. 4007/2008 (for additional docs. by A)
1. By way of the present application, the appellant seeks to
place on record certain medical documents, including hospital
records to contend that the age of the testator was recorded as 72
years in the hospital medical records, whereas the Will dated
22.04.2003 records his age as 65 years. The appellant also seeks
to rely upon a document relating to the donation of blood by him
to the testator.
2. Vide order dated 11.08.2010, this Court had directed that
all the pending applications be heard at the time of final hearing
of the appeal. Accordingly, the present application has been taken
up.
3. Having considered the submissions and for the reasons
stated hereinabove, this Court finds that the appellant has not
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furnished a satisfactory explanation for his failure to produce the
documents before the Probate Court. The material sought to be
introduced was available, or could have been obtained by
exercising due diligence, at the stage of the original proceedings.
The application does not establish that, despite the exercise of
due diligence, the documents could not have been produced
before the Probate Court, nor has it been shown that their
production at the appellate stage is necessary to enable this Court
to pronounce judgment.
4. Accordingly, the application is dismissed.
FAO 97/2008
1. The present appeal has been filed by the appellant under
Section 299 of the Indian Succession Act, 1925, (hereinafter
referred to as the “Act”) assailing the judgment and order dated
16.11.2007, passed by the learned Additional District Judge,
Delhi in Probate Case No. 76/2006. By way of the said order, the
Probate Court granted letters of administration in favour of
respondent No.1/ Smt. Charanjit Kaur in respect of the Will dated
22.04.2003, stated to be executed by late Mehtab Singh
(hereinafter referred to as the “Testator”).
2. The appellant, who is the son of the deceased testator
disputes the genuineness of the Will dated 22.04.2003 and asserts
that the Will dated 11.09.2003, propounded by him, was the last
and genuine Will of the testator.
3. The dispute, therefore, concerns two competing Wills
attributed to the testator, who died on 03.11.2003. The first Will
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is dated 22.04.2003 and is propounded by his wife, who is
respondent No. 1 in the present proceedings. The second Will is
dated 11.09.2003 and is relied upon by the appellant.
4. The brief facts necessary for the adjudication of the appeal
are that the respondent No.1/wife of the testator instituted the
probate proceedings seeking letters of administration in respect of
the Will dated 22.04.2003. Under the said Will, the deceased
bequeathed Shop No. 23, Pushpa Market, Lajpat Nagar -II, New
Delhi , and property bearing No. B-103, Dayanand Colony,
Lajpat Nagar -IV, New Delhi , in favour of his wife with further
arrangements for the devolution of the properties upon their
daughters after her death. The appellant, their son, was excluded
under the said Will and no share in the properties was bequeathed
upon him.
5. A perusal of the record shows that the house at B-103,
Dayanand Colony, had been allotted to the testator by the
Government of India under a lease deed dated 30.09.1966,
registered on 26.10.1966. The shop at Pushpa Market had been
purchased by him under a sale deed dated 13.11.1964, registered
on 25.11.1964. The Probate Court treated both properties as the
self-acquired properties of the deceased.
6. The appellant contested the probate petition and denied the
execution of the Will dated 22.04.2003. His case was that the
deceased had executed a subsequent Will dated 11.09.2003,
bequeathing Shop No. 23, Pushpa Market, in his favour. He also
questioned the physical and mental condition of the deceased and
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raised several objections concerning the signatures, preparation
and attestation of the Will propounded by respondent No. 1.
7. The Probate Court framed the following issues:
“ 1. Whether the will dated 22.4.2003 propounded by the
petitioner or the will dated 11.9.2003 relied upon by the
respondent number 5 is the last and genuine will of deceased
Mehtab Singh and if so, to what effect? OPP.
2. Relief
. ”
8. Upon appreciating the evidence led by the parties, the
Probate Court accepted the Will dated 22.04.2003 to be the
genuine Will of the testator and granted letters of administration
in respect thereof. Aggrieved by the said decision, the appellant
has approached this Court.
9. The appellant has challenged the impugned order on
several grounds. The objections principally concern the alleged
dissimilarity in the signatures of the testator appearing on
different pages of the Will dated 22.04.2003, the handwritten
insertion of the particulars of the attesting witnesses, the
overwriting in the date appearing beneath the signature of
Gurcharan Singh , the alleged inconsistencies in the testimony of
the attesting witnesses, the age and medical condition of the
deceased and the non-examination of the alleged scribe of the
Will. The appellant has also questioned the circumstances in
which the Will dated 11.09.2003 was rejected by the learned
Probate Court.
10. Learned counsel for the respondent, on the other hand,
defended the impugned order and reiterated the submissions
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made before the Probate Court. Their case is that the objections
raised by the appellant do not establish any circumstance
sufficient to displace the findings of the learned Probate Court.
11. Before examining the individual objections, it is necessary
to bear in mind the statutory requirements governing the
execution and proof of a Will. Section 63 of the Act prescribes
the manner in which an unprivileged Will is to be executed.
Under clause (c), the Will must be attested by two or more
witnesses in the manner provided therein. Section 68 of the
Indian Evidence Act, 1872, in turn, requires at least one attesting
witness to be called to prove execution where such witness is
alive, subject to the process of the Court and capable of giving
evidence. Section 68 reads as under:
“ 68. Proof of execution of document required by law to be
attested.—If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be
an attesting witness alive, and subject to the process of the Court
and capable of giving evidence . ”
12. The principles governing proof of a Will were explained by
the Supreme Court in “ H. Venkatachala Iyengar v. B.N.
1
Thimmajamma ” . The propounder must establish due execution
of the Will and, where legitimate suspicious circumstances arise,
must explain them to the satisfaction of the Court. At the same
time, every circumstance relied upon by an objector cannot,
merely by being questioned, be treated as a suspicious
1
AIR 1959 SC 443
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2
circumstance. In “ Indu Bala Bose v. Manindra Chandra Bose ” ,
the Supreme Court explained that a circumstance is suspicious
when it is not normal, is not normally expected in the situation, or
is not expected of a normal person. The objections must,
therefore, be assessed against the evidence as a whole.
13. In the present case, respondent No. 1 examined herself as
PW-1 and also produced PW-2/ Gurcharan Singh Guliani and
PW-3/ Jeevan Dass , who were the attesting witnesses to the Will
dated 22.04.2003. Both attesting witnesses deposed that the
testator signed the Will in their presence and that they signed it in
the presence of the testator and each other. They also testified that
the testator was in a sound disposing state of mind at the time of
execution.
14. The first objection raised by the appellant concerns the
signatures of the deceased on the different pages of the Will. It is
contended that the signatures are dissimilar and disclose pen
pauses and lifts, suggesting that the document was forged. This
objection is required to be considered along with the testimony of
the attesting witnesses and the other material on record. The mere
assertion that the signatures appear different, without reliable
evidence establishing that they were not made by the testator,
does not by itself establish forgery. The appellant had also
questioned the fact that the names and particulars of the attesting
witnesses were written by hand in spaces left blank in the typed
Will. The Probate Court noticed this feature but did not consider
2
(1982) 1 SCC 20
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it sufficient, in the circumstances of the case, to reject the
document. Both attesting witnesses identified their signatures and
supported the execution of the Will.
15. Another objection concerns the overwriting in the date
appearing beneath the signature of Gurcharan Singh . The Probate
Court acknowledged the overwriting after perusing the original
Will but found it insignificant, noting that the date appearing
beneath the testator’s signature was also 22.04.2003. On the
material presently identified, the appellant has not shown how
this overwriting, by itself, disproves the execution of the Will or
renders the testimony of both attesting witnesses unreliable.
16. The appellant further contends that there are alleged
contradictions in the depositions of PW-2/ Gurcharan Singh
Guliani and PW-3/ Jeevan Dass concerning the circumstances in
which the Will was prepared and the presence of respondent No.
1 and the daughters of the deceased. A difference in the
witnesses’ recollection of surrounding details does not
necessarily contradict their evidence on the essential requirement
of execution and attestation. It is also a settled position in law that
the mere presence of beneficiaries at the time of the execution of
a Will, is not sufficient to doubt its genuineness, unless it is
further established that the beneficiaries exercised influence over
the testator in making the testamentary disposition. The material
question is whether their evidence on the testator’s signatures and
their own attestation remains credible. The Probate Court
considered the testimony of both witnesses and rightly accepted
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their evidence on this aspect.
17. The next objection that PW-3 signed in Urdu while giving
evidence in Court, whereas his signature on the Will is in
English, also does not support the version of the appellant that the
Will was not duly attested. The appellant’s contention has to be
assessed in the context of the evidence actually recorded. In the
absence of reliable material establishing that the signature on the
Will was not that of PW-3, the contention is meritless especially
in view of the fact that the execution stands proved by the
attesting witnesses.
18. The non-examination of the person stated to have scribed
the Will has also been raised as a ground for drawing an adverse
inference against respondent No. 1. However, the execution of a
Will is not required to be proved only through its scribe. The
statutory requirement is proof in the manner prescribed by law,
including the evidence of an attesting witness as required by
Section 68 of the Evidence Act. In the present case, both attesting
witnesses were examined and deposed to the execution and
attestation of the Will. The non-examination of the scribe, by
itself, does not negate their evidence.
19. Another contention regarding the variation in the age of the
testator has also been raised before this Court. The Will dated
22.04.2003 records the age of the testator as 65 years, whereas
the appellant relies upon the medical record of the year 2003 to
contend that he was about 72 years of age. More pertinently, this
contention was neither raised before the Probate Court nor any
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such suggestion was given to any witness. The appellant has also
not demonstrated how this discrepancy bears upon the testator’s
capacity to execute the Will or otherwise affects the evidence
regarding its execution.
20. The objection concerning the time at which the Will was
produced and the absence of steps for mutation was also
considered by the Probate Court. The deceased died on
03.11.2003, while the probate petition was instituted on
09.12.2004. The Probate Court found that the interval did not, in
the facts of the case, amount to unexplained delay sufficient to
cast doubt upon the Will. No period of limitation for filing a
probate petition was identified as having been breached. This
Court finds no reason to disagree with the conclusion rendered by
the Probate Court on this aspect as well.
21. The appellant also relies upon the fact that the deceased
had undergone an operation for a tumour before his death. PW-2
acknowledged that the deceased had undergone such an operation
but stated that, at the time of execution of the Will, he was in
sound health and in full possession of his senses. The evidence of
the attesting witnesses on this aspect was rightly accepted by the
Probate Court.
22. The governing principle is that the Court must be satisfied
that the Will represents the genuine testamentary disposition of
the testator. Similarly, the test stated in “ Indu Bala Bose ” ( supra )
requires the Court to distinguish between circumstances that are
genuinely suspicious and those which are not abnormal in the
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circumstances or do not materially affect the proof of the
document. The Will dated 22.04.2003 itself carries the reasons to
exclude the appellant from the estate of the deceased testator for
neither being faithful nor caring in nature. In fact, a reference was
also made to the public notice issued by the testator to debar the
appellant. The objections concerning the handwritten particulars,
overwriting, absence of notarisation and non-examination of the
scribe they do not, in the opinion of this Court, displace the direct
evidence of the attesting witnesses.
23. Turning to the Will dated 11.09.2003 propounded by the
appellant, the Probate Court examined the evidence of RW-1/ Om
Prakash and RW-3/ Ashok , who were produced as attesting
witnesses to that document. The Court found material reasons to
doubt the manner in which the document had been executed and
the reliability of the testimony tendered in its support. The
Probate Court noticed that the signatures attributed to the
witnesses appeared at the extreme left of the paper, rather than at
the place ordinarily used for the signatures of attesting witnesses.
It also noted the absence of their parentage and address
particulars and expressed doubt as to whether the witnesses
produced before the Court were the persons who had signed the
document. The Probate Court further found the testimony of RW-
1 and RW-3 unreliable. Its assessment was not confined to the
fact that the witnesses were a bank peon and a three-wheeler
driver, rather, the Court considered the placement of their
signatures, the absence of identifying particulars and the
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circumstances in which the document appeared to have been
prepared.
24. On an independent consideration of the material noticed
above, the Probate Court had before it the testimony of both
attesting witnesses to the Will dated 22.04.2003. They supported
the testator’s execution of the document and their own attestation
in his presence. The objections raised by the appellant have been
considered individually and cumulatively. They do not, on the
material presently established, demonstrate that the learned
Probate Court’s acceptance of the evidence was perverse or that a
material circumstance affecting the genuineness of the Will was
ignored.
25. Accordingly, in view of the reasons recorded above, the
appeal is dismissed and the judgment and order dated 16.11.2007
passed by the learned Additional District Judge is upheld.
26. The appeal stands disposed of accordingly.
(MANOJ KUMAR OHRI)
JUDGE
OCTOBER 09, 2026
na
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